Information for Lawyers

Resources


Information for Lawyers

Group and Test Case Certificates

Possible Test Cases - Mental Health Law

A group of staff lawyers at LAO LAW has put together a list of possible test case scenarios in the area of mental health law, based on ideas put forward by the Mental Health Law Advisory Committee. Advisory Committee members have suggested that litigation supported by test case funding could be an appropriate response to a number of practice areas/issues that affect mental health law clients. The various scenarios are set out below with some of the potential avenues for litigation.

LAO would like to remind the bar that funding for test cases is available and that applications for test case funding can be made to the LAO Group Applications and Test Cases Committee.

(a) Consent and Capacity Board Cases

  • Mandamus application to require compliance with the statutory requirement set out in s.75(2) of the Health Care Consent Act for a hearing to be held within seven days of receipt of application
  • Mandamus application requiring the Board to prepare hearing transcripts for judicial reviews and appeals
  • Mandamus application or appeal in relation to financial capacity hearings where applicant is denied a second hearing (review of financial incapacity) on a Form 24 (Notice of Continuance of financial incapacity), as required under s.60(1) of the Mental Health Act or
  • Mandamus application or appeal where applicant is required to apply for a review of financial incapacity under the Substitute Decisions Act, following a Form 24
  • Mandamus application or appeal in relation to s.54(6)(b) of the Mental Health Act, where the patient is denied a right of review in relation to financial capacity where the patient has executed a power of attorney for property
  • Mandamus application or appeal regarding the Consent and Capacity Board's jurisdiction pursuant to the Health Care Consent Act to refuse to hold a hearing in relation to involuntary admission, financial capacity, admission to a care facility, capacity to consent to treatment, capacity to consent to personal assistance services
  • Mandamus application or appeal regarding mandatory hearings for reviews of involuntary admissions, and community treatment orders in relation to the Board's interpretation of ss.39(2) and 39(4) of the Mental Health Act, including the improper use of the Form 48 in community treatment order cases
  • Mandamus application or appeal in relation to the current interpretation of s.41(4) of the Mental Health Act, which deprives a patient of a subsequent hearing where the physician issues a new form prior to the conclusion of the applicant's hearing
  • Judicial review application regarding the interpretation of the Box B criteria for involuntary admission where Board interprets the requirement that the patient have been found incapable to consent to treatment as being met if there has been any previous finding of incapacity (not on this admission)
  • Appeal of issue estoppel or res judicata in hearings about the review of community treatment orders where there is a recurring tendency for the Board to ask if anything has changed since the last hearing and use reasons and evidence in past hearing in the current hearing
  • Appeals of Community Treatment Orders
  • Appeal or mandamus application regarding the failure of the hospitals to bring mandatory hearings for community treatment orders to the attention of the Board

(b) Ontario Review Board Cases

  • Judicial review or mandamus application in relation to restriction of liberty hearings, pursuant to s.672.81(2)(a) and s.672.54(b) or (c) of the Criminal Code, where hearings are not held promptly and are deemed to be annual hearings
  • Judicial review of the ORB's authority to allow an accused to sign a waiver in relation to making the restriction of liberty hearing into the annual hearing
  • Appeal or challenge to McGillis case [Brockville Psychiatric Hospital v. McGillis, [1996] O.J. No. 3430 (Ont.C.A.)] which held that the ORB cannot give the hospital discretion to approve accommodation for a patient
  • Mandamus application to require the ORB to deliver reasons in a timely manner (appeal runs from date reasons delivered resulting in moot appeals)

- - - - - - - - - - - - - - - - - - - - -
Click here for How To Apply for Group and Test Case Certificates



Possible Test Cases

For information on possible test cases please refer to the following:
  - Correctional Law
  - Mental Health Law
  - Criminal Law

Click here for How To Apply for Group and Test Case Certificates